Court File and Parties

Court File No.: Town of Oakville No. 11-3429 and 11-2926

Date: 2013-04-29

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Mezgec

Before: Justice Stephen D. Brown

Heard on: September 7, 17, 27, October 10, December 5, 2012

Reasons for Judgment released on: April 29, 2013

Counsel:

Erin O'Marra for the Crown

Stephen Biss for the accused Michael Mezgec

Reasons for Judgment

Brown, J.:

1. Introduction and Charges

[1] Michael Mezgec is charged with the following offences emanating from an incident occurring on October 19, 2011: Impaired Operation of a motor vehicle contrary to s. 253(1)(a), Operate over 80, contrary to s. 253(1)(b), and Dangerous Operation of a motor vehicle contrary to s. 249(1) of the Criminal Code.

[2] The Crown proceeded by way of summary conviction on the charges.

1.1 Summary of the Evidence

[3] This was a case where the Crown was plagued with misfortune. A witness was unavailable to testify because he was in a remote location at the time of trial, witnesses suffered from memory loss and reliability issues, and Charter rights were conceded as having been breached, rendering the results of the blood test demands inadmissible.

[4] Essentially this case involves the accused operating a motor vehicle at a high rate of speed on the QEW westbound at Royal Windsor Drive when he loses control of the vehicle and hits and comes to rest against the center medium. Several minutes later, a tow truck arrives on scene and is backing up towards the disabled vehicle at least partially in the passing lane when it is struck by another vehicle. The occupant of that vehicle died as a result of that collision.

[5] Mr. Mezgec was investigated and arrested by the O.P.P. officer in charge of this case who, upon leaving his shift later on that morning, was himself involved in a serious ATV accident which caused brain damage resulting in him being in a coma for a period of time. Because of that, the investigating officer has no present recollection of any of the events of that evening.

[6] Although a blood sample was taken and analyzed pursuant to a demand, the Crown concedes that the results of that testing are inadmissible due to a breach of the accused's 10(b) Charter rights and does not seek to adduce that evidence.

[7] They do, however, seek to adduce the business records of the hospital blood test done on the accused and, through an expert witness, seek to establish that at the time of the driving his blood alcohol level exceeded the legal limit.

[8] Unfortunately, the Crown for whatever reason which was not made known to me, did not call the technician who did the blood testing at the hospital, so the Court is left with a dearth of evidence concerning what type of analysis was done, using what machine, any evidence concerning the technicians training or qualifications or his/her opinion about whether the machine was operating in a proper or suitable manner.

[9] Essentially I am asked to hold that, because the accurate analysis of blood is a crucial factor in the treatment and diagnosis of patients in a hospital, then one must assume that this was an accurate and reliable measurement of blood alcohol level in the accused at the time it was taken on the criminal standard of proof beyond a reasonable doubt.

1.2 Evidence of the Witness John Meloche

[10] Shortly after midnight on October 19, 2011 Mr. Meloche was proceeding westbound on the QEW in the Town of Oakville en route to Port Colbourne with his friend, Jason Liddard, after picking Mr. Liddard up from a flight at Pearson Airport.

[11] As he was driving, his attention was caught by a vehicle approaching him rapidly that he first viewed in his right rear mirror. Mr. Meloche indicates that he was travelling at about 130 kilometres per hour in a 100 kilometre per hour speed zone and that the approaching vehicle was travelling at a high rate of speed which he estimated to be 160 kilometres per hour. Mr. Meloche was travelling in the center lane of the three-lane roadway when the vehicle described as a dark older model Honda Accord driven by the accused passed him to the right and then changed lanes all the way to the passing lane without signalling.

[12] Mr. Meloche testified that he saw the accused's vehicle "playing with the rumble strips" which meant going on and off the rumble strips four to five times. On the last occasion he lost control of his vehicle and stuck the medium where his vehicle came to rest with its back end protruding into the passing lane at a 45-degree angle.

[13] He said he had the vehicle in sight for about 20 to 30 seconds before the accident and that it had managed to gain a distance of about ¾ of a kilometer ahead of him before the accident. On cross-examination he acknowledged that he told the police that he had the vehicle in sight for about 10 seconds before the accident.

[14] He stopped his vehicle to offer assistance and asked Mr. Mezgec, who was still in the driver's seat, if he was all right and he said he was. At this time Mr. Meloche could smell the strong smell of alcohol emanating from the breath of the accused.

[15] The accused exited the vehicle and asked Mr. Meloche to confirm that he had been cut off. Mr. Meloche agreed to this, although he had no intention of saying so as he indicated that there were no vehicles around Mr. Mezgec when he lost control of his car.

[16] He said he was angered at the accused, as he has had a family member who suffered from the results of an impaired driving incident.

[17] Mr. Meloche testified that the accused's eyes were "pretty bloodshot and red", although he acknowledged that he had not mentioned this in his statement to the police.

[18] He noticed that his arm was cut and bleeding. He did not testify as to any observations concerning the accused's gait or that his speech was in any way slurred.

[19] He testified that the accused was asking for gum and for a light for his cigarette from Mr. Meloche and others at the scene.

[20] While waiting for the police to arrive, Mr. Meloche was attempting to warn oncoming drivers by standing on the medium and flagging down approaching vehicles. He noticed that a tow truck had arrived on the scene but he was not sure from where.

[21] He thought the tow truck had pulled into the space between Mr. Meloche's vehicle and the accused's car, and was adamant that the tow truck vehicle was not backing up when it was struck. He changed his evidence and agreed that the tow truck was backing up when struck after watching the Compass video of the incident during cross-examination.

[22] He could see that the car involved in the second collision spun over to the right side of the road and, from what he could see, the driver of that car was slumped over the wheel and Mr. Meloche felt that he might be deceased.

[23] It was apparent that Mr. Meloche was significantly traumatized by this event and I think that, as a result of that, his memory was somewhat inconsistent and his reliability was affected.

[24] When Officer Conant arrived on the scene he told him that it was his view that the accused was intoxicated and the officer said that he would "keep an eye" on him.

[25] Mr. Meloche struck me as an honest and credible witness who was attempting to relate events accurately. He is to be commended for stopping and offering assistance to the driver and for attempting to warn oncoming traffic of the danger. He freely admitted his bias towards impaired drivers relating that he had a family member who had suffered because of an impaired driver. He indicated that he was angry at the accused when he smelled the alcohol on his breath.

[26] That said, I believe that his reliability as a witness was affected by the trauma and stress of the event and I find that he was internally inconsistent in some aspects, as well as externally inconsistent when one views the Compass video and compares it to his evidence.

[27] As such, I have caution in putting much weight in some of his evidence unless corroborated by other reliable evidence. It would have been helpful to hear evidence from his passenger, Mr. Liddard, however he was in a location at the time of the trial that prevented the Crown from procuring his attendance.

1.3 Evidence of Robert Conant

[28] I allowed the evidence of Officer Conant to be received under the principle of past recollection recorded.

[29] Even though Officer Conant had no recollection of making his police notes, he could identify the handwriting in his notebook as his own and gave his evidence of his training that he received about the necessity of making detailed and truthful notes of incidents that he was investigating in the course of his duties. He has no independent recollection of these events.

[30] A few hours after arresting Mr. Mezgec and going off shift, Officer Conant was involved in a serious ATV accident that almost killed him. He suffered a fractured skull, bleeding on his brain and bruising to the brain that essentially obliterated his memory of this investigation.

[31] His notes were filed as Exhibit 2 in these proceedings.

[32] The notes of this officer indicate that he received the call from his Communications Centre at 12:42 a.m. to attend the accident scene.

[33] He arrived sometime at or shortly after 12:50 a.m. and exited out of his cruiser and had conversation with Mr. Meloche. He then approached the accused and asked if he was okay and the defendant said that he was, but that his elbow was cut.

[34] He observed the complainant to have red glossy eyes and noted the strong odour of an alcoholic beverage on his breath. He has a reference in his notes to slurred speech, but of course cannot recall what words were slurred, how many were slurred or any other details about this observation other than his general notation.

[35] He has a notation about him "swaying back and forth and stumbled backwards" when he was dealing with the paramedics, but he has no recollection of the location of this, the terrain that this occurred on, what he was doing specifically at the time of the swaying or stumbling or how often or pronounced it was.

[36] At 12:59 a.m. he placed him under arrest for impaired operation of a motor vehicle, gave him his rights to counsel and caution while in the EMS vehicle. The accused requested that he be allowed to speak to counsel, but this was not accomplished until 6:10 a.m. when he spoke to duty counsel at the Burlington police station. A breath demand was given at 1:04 a.m. and at 1:08 a.m. he was en route to the hospital with him in the ambulance, arriving at 1:12 a.m.

[37] After determining from the attending physician that he was not capable of complying with the breath demand, a blood demand was given to him at 2:06 a.m. and Nurse Dauncey took blood samples pursuant to that demand at 2:13 a.m. These are the samples that were analyzed by the Centre of Forensic Sciences but were not tendered in evidence due to the conceded 10(b) violation.

[38] Officer Conant was quite forthright and honest in his evidence and clearly admitted the lack of his recollection of the incident because of his injuries.

[39] He agreed with defence counsel that this proved problematic regarding his amplification of anything other than a bare bones reading of his notes and how he was ill equipped to elaborate on anything in addition to what was in the notes or even to explain many of his observations.

[40] As such, I can assign less weight to this evidence with respect to the observations of impairment. It is externally inconsistent with the evidence of Mr. Meloche who had conversations with Mr. Mezgec but did not note any slurring of speech or irregularities in his gait or balance. It is, however, consistent with the evidence of a nurse who did notice slurred speech.

[41] In all regards in relation to the evidence of this officer, I have looked for corroborating evidence.

[42] What is consistent with the evidence of Mr. Meloche and Officer Conant is that the accused apparently had red bloodshot or glossy eyes and the strong odour of an alcoholic beverage on his breath.

1.4 Evidence of Melanie Dauncey

[43] Ms. Dauncey was the emergency room nurse who attended to the defendant at Oakville Trafalgar Hospital that morning. She has nineteen years of experience and has worked at this hospital for six years.

[44] She started to document her dealings with Mr. Mezgec at 1:20 a.m.

[45] The other nurse that dealt with the defendant as well was Shirley Davis, and Dr. Ahluwalia was the attending emergency room physician.

[46] Nurse Dauncey noticed that Mr. Mezgec was slurring his speech and that he was talking but was disoriented to the environment.

[47] She drew blood from Mr. Mezgec for the purposes of assisting with a diagnosis and the appropriate treatment to follow.

[48] The blood was drawn pursuant to a medical directive that existed at the hospital at that time that authorized nurses to draw blood from patients presenting in circumstances that the defendant did; in other words, patients who had been involved in high-speed highway collisions.

[49] She drew five vials of blood from the defendant using a clean procedure. First, she scanned the defendant's wristband and the labels for the vials are then printed out pursuant to a computerized process that I understand attach time and patient and nurse information to the scan. The labels indicate which vial is to be used, and after the vials are filled the labels are scanned again to cross check with a scan of the patient's wristband.

[50] Her nursing notes at 1:50 a.m. indicate that she drew the blood samples and sent them to the lab.

[51] She explained that she would have drawn the blood earlier and that the lab report indicates that the samples were collected at 1:30 a.m. When she is documenting her nursing notes she would put the real time of documentation in, so that would explain why the time of 1:50 a.m. is entered for a sample drawn some time earlier.

[52] She cannot state with any certainty what the exact time that she drew the samples was, but said that the range would be between 1:20 a.m. to 1:50 a.m.

[53] After drawing and labeling the samples, she indicated that she put them in a pneumatic tube that would take them directly to the lab located in another area of the hospital.

[54] The hospital lab analyses the blood and the results show up on the nurse's computer screen and are eventually printed out on a hard copy.

[55] In Mr. Mezgec's case, the result for ethyl alcohol in his blood showed 46.8 millimoles of alcohol per litre of blood.

[56] In cross-examination Ms. Dauncey admitted that she did not document when she drew the trauma blood panel or made the decision to do that but assumed that it was at 1:30 a.m. because the lab report shows that as being the collected time and that would have been acquired by using the personal scan called the PPID that she did on Mr. Mezgec when she drew the blood.

[57] She stated that she did not document these times because she knows that the PPID scan records the time of the scan and she thought it was unnecessary to double record the time.

[58] She stated that the practice is that typically within 15 minutes of sending the blood off the results start to arrive and are displayed on the computer screen used by the nurses.

[59] Thereafter, the results are printed on paper.

[60] She does not recall in Mr. Mezgec's case receiving an elevated ethyl alcohol report from the lab. Normally the lab calls and speaks with the attending nurse to advise of elevated results, but there was also another attending nurse in this case named Shirley Davis and it does appear from the records that the lab did call and speak to her.

[61] Nurse Dauncey also testified that she recalls obtaining Mr. Mezgec's consent to draw the blood trauma panel and that she was adamant that she would not have drawn it absent his consent, however she did not document that he consented. Her practice is to always explain to the patient the reason for taking the blood and obtaining their consent prior to palpating the vein to reading it for the blood draw.

[62] When cross-examined about Mr. Mezgec's slurring, she stated that during her assessment of him he slurred every word that the spoke to her.

[63] I found Ms. Dauncey to be a credible and forthright witness. It is true that she did not note certain times when she took the blood trauma panel from Mr. Mezgec, but her reasons for not doing so are understandable and she was following best practices for her profession.

[64] She was charged with the medical care of Mr. Mezgec, not the compilation of evidence to build a criminal case against him and I find that she seemed to be a conscientious and thorough nurse who followed proper protocol and checked expiry dates on the blood vials and drew them in a clean and appropriate fashion after obtaining the defendant's consent at 1:30 a.m.

[65] I found that it was reasonable to rely on the PPID scan to determine the timing of the drawing of blood and that, even though she was not responsible for quality control of that program, that she was entitled to rely on its results and data as being accurate for the purposes of her duties that evening.

1.5 Evidence of Lisa Kurpel

[66] Constable Kurpel is a member of the Ontario Provincial Police and was tasked with obtaining a production order pursuant to s. 487.012 of the Criminal Code for the hospital records in relation to this occurrence. She has been with the O.P.P. for 18 years and prior to obtaining this production order she had been involved in obtaining two or three others.

[67] Her Information to Obtain (ITO) is filed as Exhibit 3 in this trial.

[68] She commenced compiling the information for the preparation of the materials on October 3, 2011 at the request of her senior officer because Constable Conant was off sick.

[69] Over the next several days she produced the ITO and the supporting appendixes and presented it to a Justice of the Peace who signed the production order on October 14, 2011.

[70] While composing the ITO she indicated on cross-examination that she used a boilerplate document and that she cut and pasted sections that applied to Mr. Mezgec's case and put in data that was specific to his case.

[71] In reviewing the information to use for the preparation of the ITO, she reviewed the Crown brief summary, the occurrence summary from the O.P.P., Niche RMS system information, a copy of the traffic report, a copy of Constable Conant's notes and a copy of Constable Vittie's notes.

[72] She indicated that she phoned Marci MacDonald who works in records at the Oakville Trafalgar Memorial Hospital on October 12, 2011 at approximately 10:00 a.m. and she was advised that blood was taken from Mr. Mezgec for testing after he was brought to the hospital on August 19, 2011 and that records of that testing existed.

[73] She did not make a note of that, but said that she plugged this into her ITO during the conversation with Ms. MacDonald so she did not feel the need to duplicate that information in her police notebook.

1.6 Robert Langille

[74] Dr. Langille was tendered by the Crown as an expert witness in the area of forensic toxicology, specifically the ingestion, absorption, distribution and elimination of alcohol in the human body, calculation of blood alcohol concentrations in the body, and analysis of bodily fluids to determine the presence and concentration of alcohol within those fluids.

[75] Dr. Langille's colleague at the Center of Forensic Sciences, Inger Bugyra, was initially assigned to this case and completed an affidavit dated September 5, 2012 which was filed with the court and adopted by Dr. Langille regarding its content and conclusions.

[76] Dr. Langille as well reviewed the hospital lab report results from Mr. Mezgec that had been obtained as a result of the production order.

[77] Ms. Bugyra's affidavit, filed as Exhibit 8 and adopted by Dr. Langille indicates that she based her assumptions on the following information:

1. The defendant was involved in an incident at or between approximately 12:25 a.m. and 12:45 a.m.;

2. Blood was collected at approximately 1:30 a.m.;

3. An alcohol analysis was conducted at the hospital and the result was 46.8 mmol/L.

[78] She states that the projected BAC is based on the following additional factors:

1. A rate of elimination of alcohol from the blood ranging from 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour;

2. Allowance for a plateau of up to two hours;

3. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident;

4. No consumption of alcoholic beverages after the incident and before the blood was collected.

[79] She stated that plasma alcohol concentration of 46.8 mmol/L is equivalent to a blood alcohol concentration (BAC) of 186 milligrams of alcohol in 100 millilitres of blood.

[80] Based on the results of the hospital analysis, the projected BAC at or between approximately 12:25 a.m. and 12:45 a.m. is 186 to 206 milligrams of alcohol in 100 millilitres of blood.

[81] Based on those readings, Ms. Bugyra and Dr. Langille were both of the opinion that an individual with those levels of blood alcohol would be impaired in their ability to operate a motor vehicle.

[82] Dr. Langille testified as well that if the blood samples were taken at any time between 1:20 a.m. and 1:50 a.m. it would not affect the lower end of the projected BAC range, but would affect the upper end of the projected BAC by increasing it to 216 mgs/100 mL.

[83] The information that Dr. Langille had was that Ms. Bugyra had spoken to the hospital and that they had analysed blood plasma.

[84] He stated that there are very few hospitals that analyse whole blood, and if, in fact, they had analysed whole blood to obtain their readings, the BAC level would have been significantly higher than the levels calculated by Ms. Bugyra and adopted by him.

[85] Commencing at page 15 of the October 10, 2012, Dr. Langille's following testimony is helpful in this analysis. He states:

Q. And so Dr. Langile, at Mr. Mezgec's, with his range of the, I'll take the most conservative that we've talked about today, the 186 to 206 milligrams of alcohol in 100 millilitres of blood, without specific testing on him, the degree of impairment can't be ascertain but at that level he would be impaired to operate a motor vehicle, is that?

A. Yes, it would be my opinion that his ability to operate a motor vehicle would be impaired by, by alcohol.

Q. And I know you've already commented on the last sentence to do with that impairment may occur in the absence of visual signs, whether or not Mr. Mezgec was or wasn't slurring or stumbling or any odour of alcohol on his breath, does the presence or absence of any of those indicia of impairment, do you need that to factor into your opinion at all about impairment?

A. No.

Q. And just with regard to the tracking skills, what does that refer to?

A. Well, when one is, is driving, when one is, is moving and in moving within a field of, of other objects, other vehicle that are also moving. So one has to be able to track other vehicles, but also the vehicle that you're in and this actually happens more often than, than people would, would think unless your driving down a straight roadway where you only need to keep within a lane, what literally happens when you reach a curb is the road deviates away from the vehicle and you have to be able to track its deviation and then match it to keep in the lane and to turn properly by turning the, the wheel, the appropriate amount and to keep tracking that turn until you - the, the road straightens out, at which time, you have to be able to correctly identify that now the, the road is moving back the other way and, and track it, it correctly. Alcohol can diminish one's ability to turn corners accurately as well as to be able to track other vehicles that are either oncoming either from in front or are overtaking the vehicle also effects the ability to identify their, their relative distance so is liable to cause errors in, in determining whether or not there is enough room to be able to, for example, change a lane in, in front of a vehicle properly. And that is also further diminished by the fact that individuals under the influence of alcohol demonstrate risk, far greater risk taking. In a classic study of, of individuals who, who drive for a, a, for their living, a study of, of bus drivers who are at an annual event where they challenge their, their skills, bus drivers that were shown a, a, an aperture or a space between cones that was demonstrably smaller than their bus, those individuals, nevertheless, when their blood alcohol concentrations exceeded 40 milligrams of alcohol in 100 millilitres of blood decided that they could, in fact, drive their bus through that opening when it was shown that it was physically impossible. So it, it's a clear indication that alcohol also leads to greater risk taking which when performed in a, a moving vehicle at the speeds that they're moving is a definite impairment of their ability to operate a, a motor vehicle.

Q. And with - oh, I'll return to the conversion of the millimole concentration to the blood alcohol - milligrams of alcohol in 100 millilitres of blood concentration, in order to perform that calculation, does the machine, the hos - that was specifically used or the hospital protocols of the on - of the Oakville Trafalgar Memorial Hospital, do you need that information?

A. No.

Q. Why?

A. Well, the, the units they used, millimoles per litre is, is an identical type of, of units to the ones in the Criminal Code . It's, it's a, a weight of alcohol per volume of blood. A millimole is a, is a, a weight based on the number of molecules they're in a, a fixed amount, as opposed to using the actual milligram weight of, of those molecules so that it's, it's simply a straight conversion from expressing the weight as, as millimoles or moles of a substance per litre of blood into milligrams of a substance per 100 millilitres of, of blood, in this case, alcohol. The molecular weight of alcohol is, is well known and so that conversion is a, is a simple mathematical calculation. And, and that would be the calculation regardless of, of how the hospital analysed the, the blood. And the use of, of millimoles is, is common place in, in clinical settings.

[86] In cross-examination it was suggested to Dr. Langille that the reading at page 22 of Exhibit "A" shows a reading of 46.8 millimoles per litre but it does not say whether it is a litre of whole or serum blood or even urine.

[87] Dr. Langille was of the view that since this was contained in the haematology report, that it would have been a measure of ethyl alcohol in blood.

[88] Insofar as Mr. Biss suggesting that it could have been a litre of urine, I reject that proposition in that Nurse Dauncey's uncontroverted evidence is that, although a urine screen was initially ordered, it was cancelled by the doctor's order.

[89] As well, I accept Dr. Langille's evidence that it is logical to assume that the location of the result in the haematology records indicate that the fluid analysed was that of blood.

[90] I also accept Dr. Langille's evidence that it does not matter whether whole blood or blood serum was analysed because the opinions given on the analysis of blood serum are the most conservative in this case and if whole blood had been analysed, it would only serve to increase the defendant's projected BAC.

[91] With respect to the methodology of analysis and the presumed accuracy of hospital blood analysis at a major metropolitan teaching hospital, the following exchange is helpful which occurred in cross-examination on October 10, 2012 at page 30:

Q. Now, in the particular case before the court, you, in court, haven't heard any evidence or have seen anything in the documentation that's been provided to you as to how these principals, the ones I've mention, the sampling technique, preservation of samples, the collection and the handling, you haven't seen anything in the documents to tell you how this was done, have you?

A. No.

Q. And so all that you have, the only information that you have, apart from this phone call made by Ms Bugyra, all that you have is a report, you're just working from a report, a final report that has come from the hospital in, in the document or documents?

A. That's the, the evidence I have and that coupled with my knowledge of the veracity of results that are achieved in hospital on a continual basis given that (a) they are used to make medically necessary determinations, often, in, in some cases, life and death determinations, combined with 15 years of comparing the, the results of our analysis to hospital results.

Q. But.....

A. It, it gives me the ability, I believe, to opine that, that in general, hospital results are performed accurately on the appropriate samples.

Q. But all the.....

A. Notwithstanding, that, that there are sometimes errors that, that, that do occur in, in any human system.

Q. Sure. There can be errors, there may be variability that is associated with all of the things that we've talked about already.

A. Yes.

Q. And, specifically, with respect to the methods used, the methodology by the hospital should do the analysis in this particular case, you have no information about that whatsoever as to what this hospital is using?

A. No, that's, that's quite correct.

Q. You have no information whatsoever about what controls are used at the hospital...

A. That's correct.

Q. ...in the analysis?

A. Yes.

Q. If we were, if I were cross-examining you as I have lots of times before in a blood alcohol concentration case involving the police and there was no simulator with no alcohol standard, would you agree with me that your likely evidence would be that there was not a reliable breath test?

A. Yes.

Q. I want to suggest to you that if we have a situation involving a blood analysis and we have no information whatsoever about the controls that were used, about the alcohol standards that were used or any other standard that was used, then we cannot make, reach any kind of scientific conclusion about the reliability of the test?

A. Not by simply looking at the results, no.

Q. So....

A. We have to use other forms of, of analysis. So, for example, if, in fact, Mr. Mezgec's blood alcohol concentration at, at the time of testing was 80 milligrams of alcohol in 100 millilitres of blood, well, that would imply that, that the, that the error rate in the hospital's analysis was greater than 50, 50 percent. Now, that would not a reliable analysis and, and no clinician, no clinical authority would rely on those results.

Q. We would hope.

A. So that that one would - no, you couldn't, you couldn't make medical determinations on, on results that were that inaccurate.

[92] Throughout the cross-examination Mr. Biss stressed that the controls used at the hospital are unknown, the qualifications of the technician are unknown, the equipment used is unknown and there is no evidence before the court as to what protocols or safeguards are in place to assure an accurate analysis of the blood sample taken from the defendant.

[93] In re-examination, these potential problems were explained by Dr. Langille as follows commencing at page 48 of the transcript:

Q. I'm going to go back to one of the first areas that my friend, Mr. Biss, asked you questions about. I believe to do with measurements and I believe part of your response to a question was given that the hospital performs measurements for medical reasons, while not knowing the degree of variability, there are limits outside of which their measurements would not be reliable?

A. Yes, that's correct.

Q. What does that mean in, in layman's terms?

A. In layman's terms, it means that if the, if the variability in, in the measurements that they use is, is too great they will consistently make, make mistakes and given that they're, in, in hospital, they're, they're applying medical procedures, they could cause serious damage to an individual's health and/or cause, cause death. By way of an analogy, Mr. Biss talked about using a yard stick to, to, to make a measurement and most people use that type of or a tape measure to, to measure household items, making simple repairs to their home and everyone knows that there will be a variability of measurement based on the smallest division that one is, is, is using so if it's in centimetres, the smallest division may be in, in millimetres. That would be an acceptable amount of, of variability. For example, if one is installing a, a toilet and has to cut a hole in the, the centre of a floor to, to put the piping up through to put the toilet on, but if ones error measurement is in 50 or 100 percent, one might end up making the hole so large that the, that the toilet fits through rather than fitting on top. This same way with any measurement, the amount of variability will, will determine whether or not the results are reliable or whether they are not reliable for the purposes needed. So when, again, when measuring a piece of, of quarter round to go around the bottom edge of the, where the wall joins, joins the floor, a difference of a quarter or an inch may, in fact, make, make no difference to the, to the appearance, the final appearance. Whereas in, in a football game, the variability would, would relate to the actual football that's being, that's being played so they would have a larger amount of, of variability. In a hospital setting or in any forensic setting, it would the, the percentage of variability of an individual result which would be important. As, as I had, had indicated, comparing the types of measurements of, of, of drugs, alcohol and, and other substances that are, can be found within blood, the outer limits of acceptability likely apply to post-mortem toxicology, given that the nature of the sample can be so corrupted that it's not infrequent that measurements between two samples of the same item might differ by as much as, as 20 percent. However, when analyzing the blood from living individuals, it is standard to have a much more tighter amount of, of variability. The alcohol analysis collected at the Centre of Forensic Sciences falls to a maximum variability of plus or minus five percent. In those protocols that I have reviewed from hospitals, their variability typical is plus or minus ten percent. So it's, it's quite true that I don't have any evidence at all as to what the specific variability is at, at the Oakville Trafalgar Hospital but, for example, if their, if their variability of measurement was plus or minus 50 percent, that could well mean that someone whose blood alcohol concentration was measured at a hundred could, in fact, be as higher as a hundred and fifty, which would have a significant increase in the central nervous system, the present effects of that, of that drug and if, for example, an anaesthetists was going to be putting that person under, they would be, it would be very difficult for them to rely on such an inaccurate measurement of the individual's blood alcohol concentration and the possible effects when he is going to be administering another central nervous system depressant drug to put the person under. Therefore, while I can't state with any confidence what the, the exact variability was of, of the analysis that was performed at the, the hospital, I feel I have a reasonable opinion that, given that these results are used for medical decisions, they, the likelihood is that the variability of their results would probably not reach nor exceed the, the extreme variability that we use at the Centre when analyzing post-mortem results and would more likely reflect what the general medical community would find acceptable, which would probably be closer to plus or minus ten percent.

(Emphasis mine)

[94] Dr. Langille was the last witness to testify before me.

[95] The defendant called no evidence in this trial, although I am quite aware that he is under no obligation to do so and the onus remains on the Crown throughout these proceedings to prove the essential elements of these charges beyond a reasonable doubt.

2.1(a)(i) Position of the Crown

[96] It is the position of the Crown that it has proven beyond a reasonable doubt all the essential elements of the charges before this court.

[97] Dealing with the charge of Dangerous Operation of a motor vehicle, Ms. O'Marra submits that the evidence of Mr. Meloche establishes that the defendant operated his vehicle in a dangerous manner on the evening in question. She cites the high speed of the defendant's vehicle, the erratic lane changes and the "playing with" the rumble strips, combined with the presence of alcohol in his system and his loss of control of his car, to be determinative of the issue of dangerous driving in all of the circumstances.

[98] She points to the fact that the defendant tried to enlist Mr. Meloche in supporting his story that "he was cut off" when the evidence from the sole witness to the driving was that there were no cars around him at the time that he lost control.

[99] She submits that this evidence serves to explain that when Mr. Meloche said that just before the accident when the defendant lost control it looked like he had a flat tire shows that Mr. Meloche was being descriptive only in his narration of these events. If indeed the accused had a flat tire, one would expect him to ask the witnesses on the scene to support that assertion rather than the one that he had been cut off by another vehicle.

[100] She also points out that, on Mr. Meloche's evidence, the defendant was asking for gum and a lighter for his cigarette, ostensibly in an effort to mask the smell of alcohol on his breath.

[101] The charge of Operate Over 80 is a lynch pin to the Crown's case. If I find that there was no s. 8 breach in obtaining the production order and that the results of the blood test is admissible, then that evidence will have a potentially profound impact on the assessment of the charges related to Impaired Operation and Dangerous Operation charges.

[102] Regarding the charge of Impaired Operation, the Crown submits that there is sufficient evidence to make a finding of guilt on that charge.

[103] Mr. Mezgec smelled of alcohol according to Mr. Meloche and he was unsteady on his feet according to the notes of Constable Conant.

[104] His speech was slurred according to Conant and Dauncey, and Conant observed his eyes to be red and glossy, and he was swaying back and forth and stumbled backwards when the EMS paramedics asked him to sit on the gurney. No EMS personnel were called that may have provided some corroboration to this statement or to have added their observations to this trial.

[105] The Crown submits that the production order obtained by the police from the Justice of the Peace was a proper judicial authorization to obtain the hospital records of the defendant.

[106] The ITO was sufficient to allow a judicial authorization and the records of the hospital admitted as business records together with the evidence of Dr. Langille conclusively establish that the defendant, at the time of the accident, was operating his motor vehicle with a blood alcohol limit well in excess of the legal limit.

[107] The Crown argues that despite the dearth of evidence from the hospital concerning the analysis of the blood sample and the protocol used and the evidence from the technician who did the analysis, that the results of the blood testing are inherently accurate, as no major hospital would rely on results of blood analysis in the diagnosing and treating of patients unless there was a high degree of accuracy in those results.

[108] To do so would be to risk the health and safety of all of their patients.

2.2(a)(i) Position of the Defence

[109] Mr. Biss argues on behalf of Mr. Mezgec that the Crown's case falls far short of establishing the requisite elements of these charges.

[110] Regarding the Dangerous Operation charge he argues that the evidence of Mr. Meloche was inconsistent, conclusory, and biased.

[111] He states that Mr. Meloche only had the opportunity to observe the defendant's driving for a brief period of time, that his statements to the police were inconsistent with his evidence at trial and that his evidence was simply wrong on several key points.

[112] Mr. Biss also challenges the production order under ss. 7 and 8 of the Charter submitting that it was obtained for only a charge of impaired operation, whereas at the time Mr. Mezgec was charged with Impaired, Over 80 and Dangerous Operation.

[113] He also submits that his client's reasonable expectation of privacy was violated when police were told by Marci MacDonald of the Patient Records Management Office that his blood was taken for testing on that night and that the results of the testing were within the hospital.

[114] He also asserts that Constable Kurpel's notes were deficient concerning the conversation with Ms. MacDonald and that the officer used 'boiler plate' templates to create the ITO and that it is accordingly incomplete and misleading. He states that these deficiencies when combined with the admitted s. 10(b) breach are serious infringements of the defendant's Charter rights and the evidence of the hospital records obtained with the search warrant should be excluded on a s. 24(2) analysis.

[115] He further argues that reliance on the hospital records alone is problematic in this case.

[116] He points out that Nurse Dauncey indicates she relied upon the lab report in her treatment of the defendant, yet she has no note or recollection of being informed that it was a high reading by the lab, or that she reported this to Dr. Ahluwalia.

[117] Further, he submits that the printed hospital record is dated August 22, 2011 while her treatment of Mr. Mezgec was on August 19, 2011, so Nurse Dauncey never compared the August 22, 2011 report to the computer screen that she was drawing this information from on August 19, she would not have been able to do so.

[118] He also suggests that in a transcribed discharge summary done by Dr. Ahluwalia that was dated September 23, 2011, there is a reference that states "his ethyl alcohol was 46.4." and that is found at page 20 of exhibit "A". This is of course different from the lab report at page 22 of exhibit "A" wherein the result for his ethyl alcohol is reported as 46.8 (d) *H mmol/L.

[119] Mr. Biss suggests that there is a possibility that the other nurse on duty that evening, Shirley Davis drew the blood from Mr. Mezgec and that is why it is noted that Michelle Belfon from the lab placed a call to Nurse Davis that morning.

[120] The Crown did not call Ms. Belfon or Nurse Davis at this trial.

[121] Mr. Biss argues that the Crown has not proven that Mr. Mezgec gave his consent to draw blood. He states that much of Nurse Dauncey's evidence concerned what her standard practices are and what "she would have done."

[122] Nurse Dauncey did not document that she asked for Mr. Mezgec's consent to draw blood, and she cannot recall the words that he used to give his consent.

[123] Mr. Biss vigorously argues that there is simply not enough evidence before this court to rule out the possibility of human or machine error in the results of the blood analysis.

[124] He points out that the Crown did not call any evidence from the operator of the blood testing equipment that could serve to clear up any questions about its accuracy or reliability and although Dr. Langille is eminently qualified to discuss blood testing at the Center of Forensic Sciences, he is not familiar with the machines or methodology or competence of the operators of the machines used at the hospital to enable him to give an opinion on the reliability of these tests.

[125] The specifics of his objections are enumerated in paragraph 7(a)(i-xvii) of his Charter Application and need not be reproduced here.

[126] Mr. Biss submits that the evidence concerning the charges of Impaired Operation and Dangerous Operation is insufficient to ground a finding of guilt beyond a reasonable doubt.

[127] In dealing with Nurse Dauncey's comments about the defendant's slurred speech, he states that her evidence was conclusory in that she stated that every word that he spoke was slurred, and she was unable to give any details about that. He amplifies the danger of relying on Constable Conant's notes about slurred speech because the officer has no independent recollection about the events of that evening and thus cannot give any details about what words or in what context there was slurring. Finally he notes that Mr. Meloche made no mention of slurred speech in his evidence.

[128] Mr. Biss points out that we do not have evidence from Mr. Meloche about stumbling or swaying, and that the evidence found in Constable Conant's notes are absent any context or significant detail such that it would be dangerous to rely on that evidence.

[129] Similar submissions were made with regards to red glossy eyes. He points out that Nurse Dauncey did not make note of, or recall red glossy eyes, or the odour of alcohol from the defendant's breath. Mr. Meloche's evidence about red bloodshot eyes was absent from his police statement.

[130] Mr. Biss points out that in the hospital notes Dr. Ahluwalia states in his discharge summary as follows:

In summary, Michael has come in with a post motor vehicle collision. His injuries appear to be a mild head injury with a decreased level of consciousness which may be related to either a mild concussion or intoxication.

[131] He submits that this opinion neutralizes the evidence from the witnesses that does exist about any problems with gait or balance or slurring of speech.

1.0 Analysis

[132] The burden of proof in this case, as in every criminal allegation, is upon the Crown to prove the facts in support of the guilt of the defendant on the basis of proof beyond a reasonable doubt. A reasonable doubt, as per Mr. Justice Cory's comments in R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, is defined as "a doubt based on reason and common sense which must logically be based upon the evidence or lack of evidence". Alternatively, it has been defined by Mr. Justice Iacobucci of the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 as "falling much closer to absolute certainty than to proof on a balance of probabilities".

[133] In assessing a witness' credibility and reliability, I must consider the witness' perception, memory and sincerity. I must consider the witness' ability to observe, store, recall and report evidence accurately, reliably and truthfully. I must consider the witness' interest or bias, if any, including animosity. I must consider the witness' evidence in the context of its internal consistencies or inconsistencies, its consistencies or inconsistencies with other evidence from other witnesses and, finally, its consistency with reason and the probability of truth. The Court can expect discrepancies and inconsistencies from time to time. Such is the nature of our human personalities and frailties. Some inconsistencies and discrepancies have a need to be resolved and some do not. The evidence must be considered in totality as a whole.

[134] I am able to accept some, all or none of a witness' evidence.

[135] My failure to refer to any specific witness' evidence or document filed as an exhibit, or case law cited to me or submissions of counsel, does not mean that I have not considered that evidence or law or submissions in coming to my conclusions.

[136] The assessment of evidence that is required in coming to a conclusion in this case does not involve the choosing of one witness' evidence over the other. I am not required to choose between two competing versions of events. I am able to accept or reject some, all or none of a witness' evidence.

[137] I believe that the proper approach to this analysis is to first examine whether the hospital records can be admitted as business records pursuant to s. 30 of the Canada Evidence Act and thereafter to determine what weight they should be afforded.

[138] Should the records be admissible, they have the potential to impact on not on the Over 80 Charge, but the Impaired and Dangerous Operation Charges as well.

[139] In order to do this it is necessary to make a ruling on the defendant's application to quash the search warrant.

3.1 Ruling on s. 8 Application to Quash the Search Warrant

[140] Although not cited to me by either counsel I think that the principles as set out by Hill, J. in R. v. Ngo 2011 ONSC 6676, [2011] O.J. No. 5023 (Ont. Sup. Ct) are instructive and I am guided by them. They are worth setting out at this stage of my analysis. At paragraph 33 of that judgment, the Court states:

General Principles

33 In a s.8/24(2) pre-trial motion, the court reviewing a search warrant ITO does not stand in place of the justice of the peace who issued the warrant. The properly circumscribed limits of review were summarized in R. v. Mahmood et al., 2011 ONCA 693, at para. 99 :

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42 ; R. v. Pires ; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30 ; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59 : R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452 ; and R. v. Wiley, [1993] 3 S.C.R. 263, at pp. 273-274 .

(emphasis of original)

34 In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts including:

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 588, at para. 45 . (aff'd, 2011 SCC 32 ).

(2) "[T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application": R. v. Nguyen, 2011 ONCA 465, at para. 57 .

(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) (QL), at para. 135 :

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, [1998] O.J. No. 4536 (Q.L.) at para. 4 , 40 W.C.B. (2d) 143 (C.A.) ; R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.) ; Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 2 B.C.A.C. 73 (C.A.) at 79 .

(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to "spell out things with the same particularity of counsel": Re Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.) , at p.190 ; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.) , at para. 19 ; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) , at p. 364 ; Re Chapman and the Queen (1983), 6 C.C.C. (3d) 296 (Ont. H.C.) , at p. 297 .

(5) It will not be surprising that an ITO will have some flaws - "[f]ew applications are perfect": Nguyen , at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace's exercise of discretion to issue the warrant.

(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief - the document should be clear, concise, legally and factually sufficient, and "need not include every minute detail of the police investigation": C.B.C. v. A.-G. for New Brunswick (1991), 67 C.C.C. (3d) 544 (S.C.C.) , at p. 562 ; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) , at p. 470 ; R. v. Ling (2009), 2009 BCCA 70, 241 C.C.C. (3d) 409 (B.C.C.A.) , at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165).

35 Central to the current application is the concept of reasonable grounds to believe. In the context of a search warrant ITO, the overarching principles may be summarized as follows:

(1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case ( R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.) , at p. 213) "or even on a balance of probabilities": R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.) , at para. 22 . Accordingly, reasonable grounds "are not proof absolute" though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.) , at p. 77 .

(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case.

(3) Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. The point was made in Campbell , at para. 57:

Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.

See also R . v. Nguyen, 2007 ONCA 24 , at para. 4 : ("The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house").

(4) "It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request" for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 223 C.C.C. (3d) 417 (Ont. S.C.J.) , at para. 320 , the court stated:

Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly ": Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 , at 469-470 (emphasis of original) . A justice can only perform the judicial function of issuing a warrant if "provided with accurate and candid information": R. v. Hosie (1996), 107 C.C.C. (3d) 385 (Ont. C.A.) at 399 ; R. v. Agensys International Inc. (2004), 187 C.C.C. (3d) 481 (Ont. C.A.) at 491 . The "requirement of candour is not difficult to understand; there is nothing technical about it": R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) at 551 . An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": Araujo , at 470. Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice": Hosie , at 398-400.

(5) The affiant's experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para. 68(6) of the Cunsolo case in these terms:

Because a trained officer is entitled to draw inferences and make deductions drawing on experience ( R. v. Jacques and Mitchell (1996), 110 C.C.C. (3d) 1 (SCC) at 12) , a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4 ; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501 ; R. v. Juan (2007), 2007 BCCA 351, 222 C.C.C. (3d) 289 (BCCA) at para. 19 ; R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341 (C.A.) at para. 12 ; R. v. Mouland, 2007 SKCA 105, [2007] S.J. No. 532 (C.A.) at paras. 26-27 ; R. v. Ingle, [2007] B.C.J. No. 2024 (C.A.) at para. 53 ; R. v. Rajaratnam (2006), 2006 ABCA 333, 214 C.C.C. (3d) 547 (Alta. C.A.) at 559 ; R. v. Grotheim, 2001 SKCA 116, [2001] S.J. No. 694 (C.A.) at para. 30 ; R. v. Quillian, [1991] A.J. No. 1211 (Q.B.) at para. 56 .

The soundness of this approach has been specifically recognized in the context of marihuana grow-op investigations: "The officer's observations, filtered through his experience with marijuana cultivation operations, provided sufficient information upon which the justice could have issued the warrant": Jacobson , at para. 22 .

(6) An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious: Lubell , at p. 190.

(7) A court considering the issuance of a search warrant is entitled to draw "reasonable inferences:" R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.) , at para. 15 ; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.) , at para. 20 , 27; R. v. Jackson (1984), 9 C.C.C. (3d) 125 (B.C.C.A.) at p. 131 ; Re Lubell , at p. 190; R. v. Sanchez (2004), 93 C.C.C. (3d) 357 (Ont. Ct.-Gen. Div.), at pp. 365, 370; R. v. Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) , at pp. 514-5 (leave to appeal refused, [1989] S.C.C.A. No. 87, [1989] 1 S.C.R. vii).

(8) Only infrequently is an ITO affiant required to discuss things not observed at the suspected site of a marihuana crow-op: Nguyen (2011), at para. 50. It is implicit that the surveillance did not observe other indicia of the existence of a grow-op: Nguyen (2011), at para. 50. "There is no obligation" on a warrant applicant "to explain away in advance, every conceivable indicia of crime they did not see or sense": Nguyen (2011), at para. 51.

(9) While a dwelling-house attracts a high level of expectation of privacy, there is no investigative necessity pre-requisite to the issuance of a warrant to search a house in the way there might be for a law office, media premises or a church. As noted in Nguyen (2011), at para. 51, "[t]here is no obligation" on the police in applying for a search warrant to explain "every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event".

[141] I find that after a review of the whole of the evidence, that Constable Kurpel was a relatively inexperienced officer at least in the drafting of an ITO. She had only done 2 or 3 of them in her career although she had assisted in up to 10 of them.

[142] As such she relied heavily on the boilerplate format for putting together the ITO. That is not necessarily fatal to the acceptance of the warrant however.

[143] In her evidence which she gave in a credible and straightforward manner, she explained that although several of the paragraphs in the ITO were simply cut and pasted into the document that she generated, she reviewed the contents of the templates and determined in her own mind whether they were applicable to the evidence that she had reviewed and what she wanted to say in the ITO.

[144] The fact that she did not document in her police notes the conversation that she had with Marci MacDonald is not cause for concern for me. It is not unusual to avoid double documentation when she explained that she entered the contents of the conversation into her draft ITO and therefore felt no need to again note them at the time in her police notes I accepted this as a logical explanation.

[145] Prior to this conversation she had reviewed the Crown brief summary, the occurrence summary from the O.P.P. Niche RMS system, a copy of the traffic report, a copy of Constable Conant's notes and a copy of Constable Vittie's notes.

[146] Even though this officer was relatively inexperienced with drafting an ITO she is a police officer with some 18 years of experience and when she states at paragraph 42 that:

From my experience as a police officer, and from speaking with other police officers, as well as speaking with different medical staff at various hospitals, it is my understanding that when a person has been involved in a motor vehicle collision, hospitals usually screen the blood of the person for alcohol and drugs, to determine whether symptoms observed in the person are due to the collision, or to the consumption of alcohol or drugs. I understand that the results of the blood screening are used to determine whether it is safe to give certain medications to the person. I anticipate such screening would have been done with the blood of Michael Mezgec.

[147] I believe that an officer with 18 years of experience, primarily in traffic enforcement, would generally have this knowledge and that it is not simply boilerplate information that Constable Kurpel included. As well this evidence closely tracks the evidence given at trial by nurse Dauncey and it is a practice that a seasoned traffic enforcement officer with the O.P.P. would likely know.

[148] Although pleaded in the application Mr. Biss did not provide any case law to support his assertion that there was a breach of his client's reasonable expectation of privacy from Ms. MacDonald informing to the police that the hospital had done a blood test and the records resided at the hospital.

[149] The case of R. v. Manders 2007 ONCA 849, [2007] O.J. No. 4757 (Ont. C.A.) is helpful to this analysis. In that decision, the officer involved confirmed with the hospital employee that all health records about the accused's treatment were kept in the health records department of the hospital. At para 15 of that case, Watt, J.A., writing for the court stated:

15 According to the informant, the doctors examining the appellant at the hospital were concerned about back injuries. The appellant had been thrown from the vehicle. The issuing justice was entitled to draw the inference, at the least from the material contained in the information if not from everyday experience, that a routine hospital procedure in the treatment of accident victims whose serious injuries have not yet been determined is to take a blood sample for medical and hospital purposes. See R. v. Katsigiorgis (1987), 39 C.C.C. (3d) 256 (Ont. C.A.) at p. 260 per Lacourciere J.A.

[150] And further at paragraph 17 of that decision the Court holds that:

It was reasonable for the issuing justice to infer that the appellant's medical treatment records would indicate the existence of a blood sample, and that such a sample would be screened routinely for alcohol or drugs that might have an effect on any medication that might subsequently be administered. Neither would it have been unreasonable for the issuing justice to infer that the treatment records may well include other evidence. After all, the phrase "evidence with respect to the commission of an offence" in s. 487(1)(b) includes anything relevant or rationally connected to the incident under investigation. See CanadianOxy Chemicals Ltd. v. Canada (Attorney General) (1998), 133 C.C.C. (3d) 426 (S.C.C.) at p. 433 per Major J.

[151] Even if there were a sufficient legal reason to exclude that portion of the ITO, which I am not suggesting there is, especially since an officer was present and witnessed the taking of the blood, I would think that simply the inclusion of paragraph 42 together with the rest of the document's contents would be sufficient to allow the issuing Justice of the Peace to grant judicial authorization.

[152] Simply because the officer used a template for most of the content of paragraph 42 does not mean that she did not hold those beliefs from her own experience and from her review of the file. She testified that she did and was extensively cross-examined on that.

[153] I accept her evidence that she did.

[154] In my view there is nothing in the ITO that I find to be misleading or that should be excised and accordingly I am of the opinion that there was sufficient information to issue a warrant before the Justice of the Peace.

[155] With respect to the suggestion that the warrant should somehow be invalid or that it is misleading because it only lists the offence as Impaired Operation, I reject that assertion.

[156] In R. v. Delorey 2004 NSCA 95, [2004] N.S.J. No. 297 (N.S.C.A) at paragraph 26 , the Nova Scotia Court of Appeal held that in that case, where there was an omission to specify the offence on the face of the warrant, even if a s. 8 breach existed because of that, the evidence should not have been excluded under s. 24(2) of the Charter.

[157] In the case at bar, the defendant was arrested by Constable Conant for Impaired Operation of a Motor vehicle, and was only subsequently charged with the offences of Dangerous Operation and Over 80.

[158] The evidence of Dr. Langille well illustrates how the 'read back' of the results of any blood tests can produce an estimated BAC at the time of driving and that a qualified forensic toxicologist can provide evidence about whether, at certain blood alcohol levels, an individuals ability to operate a motor vehicle would be impaired, as was done in this case.

[159] The omission to include the offences of Over 80 and Dangerous Operation on the warrant application does not amount to any ss. 7 or 8 violations in my mind, and even if I were wrong in that regard, I would not exclude the evidence on a s. 24(2) analysis.

3.2 Can the Crown Rely on the Hospital Records to Prove the BAC of the Defendant

[160] The Crown urges me to accept the hospital records as proof beyond a reasonable doubt that the defendant's blood alcohol level exceeded the permissible limit. They rely on the business records that were seized from the hospital in seeking to establish the blood alcohol level of the defendant in conjunction with the read back of those results from Dr. Langille.

[161] I am asked to do this notwithstanding that I have no evidence before me from the technician who conducted the test or created the records, indeed, no evidence was called from any witnesses to speak to the methodology of analysis, the qualifications of any technician who performed the analysis, or the type of machine that was utilized to perform the analysis.

[162] As well, no evidence is before the court regarding the continuity of the blood samples other than the evidence of Nurse Dauncey that she placed the vials properly labeled in a pneumatic tube used to transport the samples to the hospital lab.

[163] The absence of this evidence makes this analysis considerably more difficult than it could have been had the Crown simply decided to call a witness who was either the technician who performed the analysis or someone who had familiarity with the lab testing procedures at the hospital during the relevant time period to speak to the methodology of analysis and the generation and interpretation of the computer records.

[164] My first inclination was to reject this evidence due to the shortcomings in its presentation.

[165] However after a careful review of all the evidence, and the case law submitted and after listening to the submissions of counsel, I am prepared to find that the test results are acceptable from the standpoint of accuracy and reliability and to so find on the criminal standard of proof beyond a reasonable doubt.

[166] In dealing with the issue I must state that I accept the evidence of Nurse Dauncey. Her evidence was given in a straightforward, unbiased and clear manner and was not shaken on cross-examination.

[167] She struck me as a competent and caring nurse who had considerable experience in the emergency medical field throughout her career and for the six years preceding this incident at the Oakville Trafalgar Memorial Hospital.

[168] I accept her evidence that she took a trauma blood panel from Mr. Mezgec, with his consent, for medical reasons.

[169] The mere fact that she did not document her obtaining his consent in all the circumstances does not give me cause for concern.

[170] Her taking of the blood was done to assist in diagnosing his presenting symptoms and creating a plan of medical treatment.

[171] The blood was drawn pursuant to a standing medical directive that she was intimately familiar with.

[172] I reject any suggestion that she was acting as an agent of the state in obtaining the blood and I also reject as contrary to common sense that a nurse with her experience would simply come up to a conscious patient and stick a needle in their arm without first obtaining express consent. Absent any evidence that she did so from the defendant or any other source, I accept her evidence in this regard.

[173] This has been her standard practice since she began nursing, and I see nothing in the circumstances of this case to suggest that she departed from that while dealing with Mr. Mezgec.

[174] She was able to give clear precise evidence of the clean method utilized in drawing the blood, that she drew five vials and what the colour of the vials were, and in what order they were filled.

[175] She then personally took the vials properly labeled with the labels produced by the PPID that were crosschecked and put them into the pneumatic tube that is designed to deliver them to the hospital lab for analysis.

[176] I would suspect that she has followed this same procedure hundreds if not thousands of times.

[177] She then testified in my opinion truthfully and candidly that she observed the computer screen showing the same results that are found in exhibit "A" that showed a reading of ethyl alcohol is reported as 46.8 (d) *H mmol/L.

[178] This was a high reading and although she cannot recall reporting this to the attending doctor, and did not note that she did, I do find that she viewed these results and that they correlate with the printout results that are in evidence in this trial.

[179] To suggest that the results that Nurse Dauncey observed during her treatment of the defendant and presented to her on the computer screen are different from the print out results obtained several days later is in my view fanciful conjecture.

[180] I also reject the suggestion that Nurse Davis took blood samples from Mr. Mezgec that evening. She does not make a notation of that in her nursing notes in the hospital records and it would not make sense for both her and Nurse Dauncey to have taken blood samples for his medical care if both were working in conjunction with each other to care for this patient.

[181] As well Nurse Dauncey does make a notation that she took the blood trauma panel from the defendant.

[182] The fact that someone from the lab called Nurse Davis that evening as shown in the lab report is just as consistent with the lab calling down the elevated blood alcohol reading to the emergency department and Nurse Davis answered the phone and received that information.

[183] That would also explain why Nurse Dauncey did not have a recollection of receiving that notification that evening. Had Nurse Dauncey been there when Nurse Davis relayed that information to the attending doctor, Nurse Dauncey would have had no need to make a notation of that or to even recall it.

[184] The case of R. v. Murray 2011 ONSC 3735, [2011] O.J. No. 2875 (Ont. Sup. Ct.) was referred to in submissions by counsel. After submissions had concluded in this matter, the Ontario Court of Appeal affirmed this decision on March 21, 2013 reported as R. v. Murray 2013 ONCA 173, [2013] O.J. No. 1267 (Ont.C.A.).

[185] In the trial decision of Murray, supra , Koke, J. was faced with a similar fact situation as presents in the case at bar, although it is noted that in that case that the lab technician who performed the test did testify.

[186] Helpful to me arriving at my conclusions in this case is that analysis conducted by Koke, J. in that decision. I agree with his analysis commencing at paragraph 69 of the trial judgment which is a follows:

69 The accused argues that the alcohol content of the blood obtained in the hospital for medical purposes should not be used to prove the charges against the accused in the circumstances of this case. He objects to the admission of this evidence on the basis that the capability, accuracy and reliability of the hospital testing machine had not been established.

70 The Ontario Court of Appeal dealt with the admissibility of hospital test results in R v Redmond 6 . In Redmond , the Court considered and reviewed the decision of the Saskatchewan Court of Appeal in R. v. Bird 7 , a case in which that court held that the results of the tests conducted by the two technologists were inadmissible as evidence of the blood alcohol content. The basis for the decision by the Saskatchewan court was that the technologists who conducted the tests were only qualified as experts in the operation of the machines but not for the purpose of establishing their capability, accuracy or reliability in analyzing blood.

71 The Court in Redmond rejected the reasoning of the majority in Bird and adopted the dissenting position of Wakeling J.A. of the Saskatchewan court who held that the inability of the laboratory technologists to describe how the machines operated and their efficacy in comparison with other methods of determining blood-alcohol content went to weight and not admissibility.

72 The Ontario Court cited with approval the following comments of Wakeling J.A. on the reliance on mechanical aids generally by experts in giving evidence:

I am further influenced by my knowledge that many experts give testimony which involves the application of information made available through the use of specialized instruments. Some examples which come to mind include the chartered accountant's use of computers, and the medical profession's use of an x-ray machine. These experts would not likely be able to confirm their expertise in the technical functioning of these instruments as it would obviously take a much different form of training and background to explain the intricacies of the instrument and the chemical, electronic or other concepts which it utilizes in its function. I accept it is not asking too much to have the expert say the instrument is in general use and generally accepted as being accurate, but I also see no problem in a trial judge reaching that conclusion where the facts clearly support that result. If by so doing the trial judge is engaged in an act of faith, it is one firmly based on the reality that experts are not likely to utilize ineffective and inaccurate instruments to make scientific analyses of critical importance within their field of expertise ... . 8

73 In this case, the blood samples were tested by Laurie Ann Sweet, a technologist employed with the Sudbury Regional Hospital. Ms. Sweet explained that as a technologist, her job was to analyze the specimens, run the machines and report to the doctor.

74 Ms. Sweet testified that upon receipt of the blood samples she followed standard procedures. She stated that she tested approximately 12 analytes. One of the tests she conducted was to determine the ethanol or alcohol concentration in Mr. Murray's blood. She stated that this specimen was run on an instrument which she described as a closed system which performed the analysis and displayed a digital readout. The results were released into a computer system which was accessed directly by the doctor.

75 Ms. Sweet was asked in what circumstances she would not release the results to the doctor and she replied that in cases where she might be suspicious that the analyzer was not working properly she might repeat the test, but that in most cases everything goes right straight through.

76 Unfortunately, very few questions were directed to Ms. Sweet with respect to the type of instrument which was used in her laboratory to test ethanol levels, the maintenance of the instrument and any safeguards that may have been in place. She was not cross-examined by the defence. In this respect, I find myself in somewhat the same position as Wakeling J.A. who, in referring to the evidence of the two technologists who conducted the testing stated at p. 64 of the Saskatchewan decision:

I agree that it would have been preferable to lead some evidence that the instrument is in general use for this purpose, and is generally recognized as capable of producing accurate results. To have done so would no doubt have made the trial judge's ruling less vexing to him, but its absence does not create a fundamental and irretrievable oversight if there is other credible evidence from which this conclusion can be reasonably drawn, which was certainly the case here. I cannot accept that the failure of these two witnesses to say the obvious creates such a flaw in their testimony as to make it unacceptable. 9

77 In assessing how much weight I am to place on the test results, I am compelled to consider not only the fact that the testing was conducted by a qualified technologist, but also the fact the laboratory in which the testing equipment was located and in which the testing and analysis was performed was in a large urban hospital. This laboratory was designed to service doctors and other trained medical professionals. It is implicit that these medical professionals were prepared to rely on the laboratory results to make their decisions, decisions which impact the health, and sometimes the life of hospital patients. It is also implicit that a laboratory which is designed and operated for these purposes will use reliable and well maintained and calibrated equipment.

78 On these facts, I am prepared to find that the test results are acceptable from the standpoint of accuracy and reliability. In making this finding, I accept the submission of the defence that I must make this finding on the criminal standard of proof and I so find.

[187] The Ontario Court of Appeal in Williams, supra , affirming the trial decision stated at paragraph 5 as follows:

5 The second point raised by the appellant also relates to the blood alcohol test at the hospital. The appellant submits that the trial judge erred in admitting or giving any weight to the evidence of the result of the lab test to determine blood alcohol content because the hospital lab technician called to introduce that evidence provided no details as to the equipment used or as to its reliability.

6 We disagree with that submission. We see no error in the trial judge's reasons, which were as follows:

In assessing how much weight I am to place on the test results, I am compelled to consider not only the fact that the testing was conducted by a qualified technologist, but also the fact the laboratory in which the testing equipment was located and in which the testing and analysis was performed was in a large urban hospital. This laboratory was designed to service doctors and other trained medical professionals. It is implicit that these medical professionals were prepared to rely on the laboratory results to make their decisions, decisions which impact the health, and sometimes the life of hospital patients. It is also implicit that a laboratory which is designed and operated for these purposes will use reliable and well maintained and calibrated equipment.

On these facts, I am prepared to find that the test results are acceptable form the standpoint of accuracy and reliability. In making this finding, I accept the submission of the defence that I must make this finding on the criminal standard of proof and I so find.

7 We agree with the appellant that there were fewer details provided as to the test than in R. v. Redmond (1990), 54 C.C.C. (3d) 273 (Ont. C.A.), but in our view the principle relied on in Redmond and, in particular the law as stated in Wigmore on Evidence , vol. 2 (Chadbourn Rev., 1979), s. 665(a), at pp. 917-19 was satisfied:

The use of scientific instruments, apparatus, formulas, and calculating tables, involves to some extent a dependence on the statements of other persons, even of anonymous observers. Yet it is not feasible for the professional man to test every instrument himself; furthermore he finds that practically the standard methods are sufficiently to be trusted. Thus, the use of an X-ray machine may give correct knowledge, though the user may neither have seen the object with his own eyes nor have made the calculations and adjustments on which the machine's trustworthiness depends. The adequacy of knowledge thus gained is recognized for a variety of standard instruments. In some instances the calculating tables or statistical results are admitted directly, under an exception to the hearsay rule. [Citations omitted.]

[188] I acknowledge that in the case at bar I do not even have direct evidence from the technician who performed the analysis, however I do have evidence that I accept from Dr. Langille which is found at page 20 of the October 10, 2012 transcript wherein the following exchange informs my findings:

Q. But you don't know what those limits would be because you don't know the methodology used by this hospital?

A. Well, I don't know the methodology, the specific methodology used by this hospital. I...

Q. If.....

A. ...I am aware that a variety of hospitals adhere to a hospital standard that I have reviewed and, and the stated variability in, in those is plus or minus ten percent. Nevertheless...

Q. But, Dr. Lan.....

A. ...I would expect, I, I, and I'll just finish, I, I would expect that, that, that for their results to be relied on in, in, in a medical, in, in, in a clinical setting, they would not exceed the, the forensic level of, of variability that the, for example, the Centre of Forensic Science adheres to when looking at, at post-mortem samples which is also the limit within the guidelines of the Society of Forensic Toxicologist which is a limit of variability of no more than plus or minus 20 percent and, and that's a level of variability that applies to post-mortem samples are that very difficult to analyse and measure. I would expect that, that for - in a clinical setting, they would have a limit of variability that would be less than that.

Q. But Dr. Langile, we don't know whether this particular hospital lab has any kind of accreditation?

A. That's correct. Although, they, they do - I believe that all hospitals in Ontario are only able to hire individuals who have the appropriate training and part of their training is to perform their, their analysis under appropriate limits of, of both variability and, and standard practices .

Q. But in terms of protocol, methodology for the hospital, there may be some new standards that are coming with respect to accreditation but I want to suggest to you that in 2011, there were not the same kinds of accreditation standards with respect to methodology in place in Ontario hospital that you would, for example, follow at the Centre of Forensic Sciences?

A. Certainly, there, there are standards made - would likely be different from, from our own and, and yes they, they could have had different standards back in 2011 as, as opposed to, to currently.

[189] I accept the evidence of Dr. Langille in this regard. I would venture to say that any major metropolitan hospital in this province that would allow unqualified, untrained technicians to perform testing of blood samples on their patients would be inviting major malpractice claims if not the possibility of criminal charges.

[190] It is worth again highlighting Dr. Langille's evidence as found at page 48 of the transcript which is evidence that I do accept. In there he states:

Q. I'm going to go back to one of the first areas that my friend, Mr. Biss, asked you questions about. I believe to do with measurements and I believe part of your response to a question was given that the hospital performs measurements for medical reasons, while not knowing the degree of variability, there are limits outside of which their measurements would not be reliable?

A. Yes, that's correct.

Q. What does that mean in, in layman's terms?

A. In layman's terms, it means that if the, if the variability in, in the measurements that they use is, is too great they will consistently make, make mistakes and given that they're, in, in hospital, they're, they're applying medical procedures, they could cause serious damage to an individual's health and/or cause, cause death. By way of an analogy, Mr. Biss talked about using a yard stick to, to, to make a measurement and most people use that type of or a tape measure to, to measure household items, making simple repairs to their home and everyone knows that there will be a variability of measurement based on the smallest division that one is, is, is using so if it's in centimetres, the smallest division may be in, in millimetres. That would be an acceptable amount of, of variability. For example, if one is installing a, a toilet and has to cut a hole in the, the centre of a floor to, to put the piping up through to put the toilet on, but if ones error measurement is in 50 or 100 percent, one might end up making the hole so large that the, that the toilet fits through rather than fitting on top. This same way with any measurement, the amount of variability will, will determine whether or not the results are reliable or whether they are not reliable for the purposes needed. So when, again, when measuring a piece of, of quarter round to go around the bottom edge of the, where the wall joins, joins the floor, a difference of a quarter or an inch may, in fact, make, make no difference to the, to the appearance, the final appearance. Whereas in, in a football game, the variability would, would relate to the actual football that's being, that's being played so they would have a larger amount of, of variability. In a hospital setting or in any forensic setting, it would the, the percentage of variability of an individual result which would be important. As, as I had, had indicated, comparing the types of measurements of, of, of drugs, alcohol and, and other substances that are, can be found within blood, the outer limits of acceptability likely apply to post-mortem toxicology, given that the nature of the sample can be so corrupted that it's not infrequent that measurements between two samples of the same item might differ by as much as, as 20 percent. However, when analyzing the blood from living individuals, it is standard to have a much more tighter amount of, of variability. The alcohol analysis collected at the Centre of Forensic Sciences falls to a maximum variability of plus or minus five percent. In those protocols that I have reviewed from hospitals, their variability typical is plus or minus ten percent. So it's, it's quite true that I don't have any evidence at all as to what the specific variability is at, at the Oakville Trafalgar Hospital but, for example, if their, if their variability of measurement was plus or minus 50 percent, that could well mean that someone whose blood alcohol concentration was measured at a hundred could, in fact, be as higher as a hundred and fifty, which would have a significant increase in the central nervous system, the present effects of that, of that drug and if, for example, an anaesthetists was going to be putting that person under, they would be, it would be very difficult for them to rely on such an inaccurate measurement of the individual's blood alcohol concentration and the possible effects when he is going to be administering another central nervous system depressant drug to put the person under. Therefore, while I can't state with any confidence what the, the exact variability was of, of the analysis that was performed at the, the hospital, I feel I have a reasonable opinion that, given that these results are used for medical decisions, they, the likelihood is that the variability of their results would probably not reach nor exceed the, the extreme variability that we use at the Centre when analyzing post-mortem results and would more likely reflect what the general medical community would find acceptable, which would probably be closer to plus or minus ten percent.

[191] Hospital trauma blood analysis cannot be lumped into the same heap as the Walkerton water tragedy. A spike in the mortality rate at that hospital would surely quickly detect errors in methodology or accuracy. We place our lives in the care of medical personnel when we suffer life threatening illnesses or trauma.

[192] We expect and demand that their screening tests are accurately done by qualified individuals, following required procedures, and have a low threshold of error.

[193] That is not to say that error or inaccuracy cannot occur because of a confluence of human or mechanical errors, yet I see nothing in this case to indicate that this has occurred.

[194] I am also not concerned that the entry in the records of Dr. Ahluwalia found at page 20 of exhibit "A" where he states; "His ethyl alcohol was 46.4."

[195] I accept Dr. Langille's evidence that this is probably a transcription error and I accept the Crown submission that it was a typographical or a transcription error that occurred over one month after Dr. Ahluwalia had dealt with Mr. Mezgec.

[196] Dr. Ahluwalia would have only had access to the reports that were present in the hospital records and those records in my view clearly indicate that the defendants blood alcohol level was 46.8 (d) *H mmol/L.

[197] I find that on the evidence before me that Dr. Langille gave his evidence in a clear concise manner and that he was not shaken on cross-examination and I accept his evidence on this issue.

[198] He has sufficient expertise in my view to be able to comment on the generally accepted testing procedures of Ontario Hospitals and I accept his evidence in this regard.

4.1 Conclusion Regarding the Count of Operate Over 80

[199] Based on my acceptance of the evidence of Dr. Langille, I have come to the conclusion and I am satisfied beyond a reasonable doubt that Mr. Mezgec was operating his motor vehicle on the night in question with an excess blood alcohol level.

[200] Based on the results of the hospital analysis, the projected BAC at or between approximately 12:25 a.m. and 12:45 a.m. is 186 to 206 mgs of alcohol in 100 mL of blood.

[201] Mr. Mezgec will be found guilty of Count 2 on the information of an offence contrary to s. 253(1) (b) of the Criminal Code.

4.2 Analysis and Disposition on the Charge of Impaired Operation

[202] Having accepted the evidence that Mr. Mezgec's BAC was at least 186 mgs of alcohol in 100 mL. of blood, I also accept Dr. Langille's unchallenged evidence that at that blood alcohol level, his ability to operate a motor vehicle would be impaired by alcohol.

[203] This evidence was compelling, and no evidence was put forward to bring this opinion into doubt.

[204] I have also accepted that the smell of alcohol was noticeable on Mr. Mezgec's breath and that his eyes were bloodshot and glossy, notwithstanding that Nurse Dauncey made no observations of that or of his bloodshot and glossy eyes.

[205] Her focus at that time was his medical care and in doing that it became secondary to notice an odour of alcohol or that his eyes were bloodshot and glossy. She did examine the dilation of his pupils but that would have been an examination to determine any possible neurological problems as opposed to impairment.

[206] I cannot find that he was unsteady on his feet because Mr. Meloche noted nothing wrong with his motor skills and Constable Conant's inability to add anything to his notes serves to diminish the strength of his observations of unsteadiness of the defendant in his notes. Without context, I can put little if any weight on that observation.

[207] I can however accept that Mr. Mezgec's speech was slurred to at least some degree because of the note to that effect by Constable Conant and the observation by Nurse Dauncey that he was slurring all of his words during her assessment.

[208] The fact that Mr. Meloche did not notice slurring does not trouble me because Mr. Meloche was extremely traumatized by the incident of witnessing the fatal collision.

[209] There is also the question of the unexplained accident and the unusual driving including speeding and subsequent suggestions to Mr. Meloche to support his story that he was cut off when I do accept Mr. Meloche's evidence that he was not.

[210] Taking all of the evidence that I do accept, Mr. Mezgec certainly far surpasses the threshold as set out in R. v. Stellato, [1993] O.J. No. 18 (Ont.C.A.) in my view and I am satisfied beyond a reasonable doubt that his ability to operate a motor vehicle was impaired that evening and significantly so, and there will be a finding of guilt to that charge which is count one on the information and is contrary to s. 253(1) (a) of the Criminal Code.

[211] I will issue a conditional stay based on the Kineapple principle to whichever of these two counts the Crown desires.

4.3 Analysis and Disposition on the Charge of Dangerous Operation

[212] I alluded earlier in these reasons to concerns that I had regarding the reliability of the evidence of Mr. Meloche regarding certain aspects of his testimony. While I am satisfied that some of his evidence is acceptable I do approach his evidence warily regarding certain events. He was extremely traumatized by the second collision that evening that resulted in a fatality and this impacted on his ability to recall certain details in my view.

[213] Because Mr. Meloche is the only witness to testify at this trial about the driving that evening his evidence must be approached with a degree of caution in light of the errors that he did make in certain parts of his testimony.

[214] I note that Mr. Meloche testified that he saw the accused first approaching him quickly in his right rear mirror. He was uncertain whether he had come off an on ramp or was on the highway when this happened. His statements are inconsistent as to how many times he 'played' with the rumble strips, and the evidence about him cutting Mr. Meloche off was weakened in cross-examination when it was pointed out that Mr. Meloche did not have to take any evasive measures.

[215] I find that the accused was doing a speed of greater than 130 kph to overtake and pass Mr. Meloche, but I cannot say that this was for any considerable period of time and it is unclear what speed he was at when he lost control of his car. Mr. Meloche did state that it appeared as if the accused had had a flat tire but there is no evidence before the court that is what happened, and it is inconsistent with the accused's own assertions that he was "cut off".

[216] I cannot accept Mr. Meloche's evidence that the defendant was talking to the tow truck driver before the second accident as he testified, because it is clear from viewing the Compass video that the tow truck arrived just seconds before the second accident and was backing up in the live lane of traffic when it was struck. Mr. Meloche gave incorrect evidence about this and it was only after he viewed the Compass video during his evidence that he corrected himself.

[217] Similarly, he was incorrect in his estimate of the number of vehicles that safely went by the first accident until the second accident. He was adamant that it was less than 40 vehicles but upon viewing the video he changed his evidence to agree with Mr. Biss that it was up to 100 or so vehicles that passed the scene of the first collision before the second one occurred. That I find is a function of the emotional trauma that Mr. Meloche suffered when he saw that the second collision had resulted in a fatality. As well his function and direction at that time was to warn oncoming vehicles, not to count them.

[218] Taking all of his evidence into account, although I can accept certain parts of his evidence and have done so, without corroboration I am unable to accept his evidence in its entirety.

[219] I do accept that he was startled by Mr. Mezgec's vehicle approaching his rear at a higher rate of speed that he was doing which I accept was 130 kph. I also accept that he stated to his passenger as set out on page 15 of the September 7, 2012 transcript as follows:

Q. But in between the time when you first noticed that motor vehicle and when it hit the median, did you say anything to Mr. Liddard about the situation?

A. Yeah, I made a comment to him that I have a feeling that we're about to witness something terrible. It started, you know, like the fact that he had passed me didn't push me to say that but when I saw that he was driving on the rumble strips, I knew that was not a good thing, and I suggested to my passenger that we may be about to watch somebody die.

[220] Although it is not clear what speed Mr. Mezgec was doing at the time he lost control of his vehicle and went into the center medium, it is clear that the driving conditions that night were good, there was no rain and visibility was good, and there is no explanation for the motor vehicle accident.

[221] The road was straight and level at the point of the collision and there were no obstacles on the road.

[222] I do not accept Mr. Mezgec's utterances that he was cut off by another vehicle, nor do they raise a reasonable doubt in my mind, and I accept that he did touch the rumble strips at the side of the road on more than one occasion.

[223] Mr. Meloche's evidence that it looked like the defendant had a flat tire is more descriptive of the sudden loss of control I think than of some unexpected mechanical failure.

[224] I have found that Mr. Mezgec had a significantly elevated level of blood alcohol during the time that he drove.

[225] He chose to consume excessive amounts of alcohol, and thereafter to drive his motor vehicle at a speed in excess of at least 30 kph over the posted speed limit on a major 400 series highway.

[226] I accept the evidence that Mr. Mezgec was significantly impaired while operating his motor vehicle at these excessive speeds and that his impairment together with the rate of speed that he was travelling at was the reason for the collision with the center medium.

[227] This resulted from a pattern of behaviour that commenced when Mr. Mezgec decided to drive after having consumed enough alcohol that he was over twice the legal limit at the time of the accident.

[228] I therefore find that Mr. Mezgec's actions constituted a marked departure from what a reasonable, prudent driver would do when operating a motor vehicle and I therefore find him guilty of this charge contrary to section 249(1) of the Criminal Code.

Released: April 29, 2013

Signed: "Justice Stephen D. Brown"